BACKGROUND

Family members are often the first to know when loved ones are in a suicidal crisis or threatening interpersonal violence. In many high profile shootings and firearm suicides, family members saw their loved ones engage in risky behaviors and grew concerned about their risk of harming themselves or others—even before any violence occurred. Given the proper tools, family members and law enforcement, as well as others close to the at-risk individual, have the potential to prevent incidents of interpersonal violence and suicide that take place across this country every day. Yet a gap in most states’ laws makes it difficult for them to intervene.

Extreme risk laws empower law enforcement, and, depending on the jurisdiction, family members, health professionals, and school administrators, among others, to prevent gun tragedies by temporarily removing firearms from individuals at an elevated risk of harm to self or others.

How Extreme Risk Laws Were Developed 

The role of the Consortium for Risk-Based Firearm Policy

Risk warrants: the precursor to modern extreme risk laws

The first extreme risk law was Connecticut’s “risk warrant,” which passed in 1999 following a mass shooting at the state’s lottery headquarters. Six years later, in 2005, Indiana passed another early version of an extreme risk law. Both laws allow only law enforcement to petition for a warrant. 

Developing recommendations for the modern extreme risk law

Extreme risk laws were further developed from risk warrants to the protection orders that are common today by the Consortium for Risk-Based Firearm Policy in 2013. Following the shooting at Sandy Hook Elementary School in Newtown, Connecticut (a case in which a risk warrant was not sought), the national conversation around preventing gun violence focused on mental illness. To examine the potential relationship between mental illness and gun violence, the Educational Fund to Stop Gun Violence brought together the nation’s leading researchers, practitioners, and advocates in gun violence prevention, public health, law, and mental health to form the Consortium for Risk-Based Firearm Policy (Consortium). 

The Consortium found that focusing firearm prohibitions based on mental illness alone was misguided, not supported by research evidence, and stigmatizing. Instead, the Consortium zeroed in on risk factors for violence to self and others that are supported by research. They conceptualized a new type of civil order based on the legal framework of existing domestic violence protection orders and focused on the principles of risk as they relate to firearm access. These recommendations became the basis of the modern extreme risk law. 

Passing the nation’s first modern extreme risk law

After the May 2014 mass shooting near the University of California, Santa Barbara campus, community members, law enforcement, and policymakers reflected on how this tragedy could have been averted. The shooter had exhibited dangerous behavior prior to the shooting, and his parents shared their concerns with his therapist who contacted law enforcement. The police briefly interviewed him but had no clear legal authority to intervene and were unable to take action before this tragedy occurred.

In the wake of this shooting, California lawmakers recognized that this gap in California law must be closed. On September 30, 2014, four months after the Santa Barbara shooting, the Educational Fund to Stop Gun Violence assisted California lawmakers in passing the nation’s first Consortium-recommended extreme risk law, known as a Gun Violence Restraining Order (GVRO), that included both law enforcement and family or household members as petitioners.

Extreme risk laws are passed in states across the country

Over the next six years, sixteen states and the District of Columbia passed extreme risk laws. As of July 2020, nearly half of the U.S. population has access to an extreme risk law.

“Before GVROs were made available in California, we were limited in our capacity to help. Now, if we see an escalation of dangerous behaviors, including risk of suicide, we can file for a GVRO. It is one more tool to keep communities safer from needless gun violence.”

- Lieutenant Eddie Hsueh, Santa Barbara County Sheriff’s Office

WHAT ARE EXTREME RISK LAWS?

Extreme risk laws (sometimes called Extreme Risk Protection Orders or “Red Flag Laws”)7 are state laws that provide law enforcement and, depending on the jurisdiction, family members, health professionals, and school administrators, among others, a formal legal process to temporarily reduce an individual’s access to firearms if they pose a danger to themselves or others. This legal process may look somewhat different across states, but most are based on the long-standing infrastructure and procedures of domestic violence protection orders (in place in all 50 states).8 It is most often a civil court order, prompted by a petition by a family member or law enforcement officer and issued by a judge upon consideration of the evidence. The order temporarily prohibits a person from possessing or purchasing firearms and provides a process for the removal of firearms already in the person’s possession. In some states, extreme risk laws also prohibit possession of ammunition. 

IT’S TIME TO RETIRE THE TERM “RED FLAG LAWS”

“As extreme risk laws have become more mainstream, the question of what to call them has become more important — and the term ‘red flag law’ has become more troubling. Over time — especially after many conversations with our allies in the mental health community — it has become clear that the term ‘red flag law’ is not just a memorable, innocuous nickname. It is a term that has the potential to alienate marginalized groups. And by mischaracterizing the way these laws operate, ‘red flag’ is a term that jeopardizes the policy’s impact. These problems stem from the vague nature of the name ‘red flag.’ Because the term is so indefinite in meaning, it is easy to corrupt. It is easy to mischaracterize the policy’s mechanisms and purpose — whether intentionally or unintentionally.” 

- March 2019 Medium blog

HOW DOES AN EXTREME RISK LAW WORK? 

Who May Petition for an Extreme Risk Protection Order (ERPO)?

Generally, family or household members and law enforcement officers may petition a court for an Extreme Risk Protection Order (ERPO).9 Some states allow other individuals to petition a court for an ERPO. These individuals include: healthcare professionals,10 employers,11 coworkers,12 and school administrators.13

How Many Types of ERPOs Are There? 

There are usually two types of ERPOs: 1) an ex parte ERPO that is available in emergency circumstances. Due to the emergency nature, an ex parte order is issued by a court without notice to the respondent or an opportunity to be heard at the hearing; and 2) a final ERPO. A final ERPO typically lasts up to one year and may only be issued after a noticed hearing at which the respondent has the opportunity to appear and be heard. Both ex parte and final ERPOs are civil, not criminal, orders.

Ex Parte ERPOs

Ex parte ERPOs are typically issued where the petitioner proves that the respondent poses an imminent risk or risk in the near future of harming themselves or someone else by having access to a firearm.14 The duration of an ex parte ERPO and standard of proof that petitioners must meet varies from state to state,15 though generally an ex parte ERPO lasts up to 14 days.16

Final ERPOs

Final ERPOs are typically issued where the petitioner proves by clear and convincing evidence or preponderance of the evidence (depending on the state statute) that the respondent poses a risk of harming themselves or someone else by having access to a firearm.17 In a majority of states, final ERPOs may last up to one year. 18

Termination and Renewal of ERPOs

ERPOs are time limited and may be terminated, renewed, or allowed to expire. Respondents typically have at least one opportunity to request a hearing for termination of an order before it is set to expire.19 At the hearing, the respondent generally has the burden of proving that they no longer pose the risk that justified the initial order. Most ERPO laws also allow a petitioner to request a renewal of an order.20 At a renewal hearing, the petitioner usually bears the same burden of proof as in the original hearing. When the order is terminated or allowed to expire and the respondent is not otherwise prohibited from purchasing or possessing a firearm (as determined through a background check), the party temporarily holding the respondent’s firearms may return them to the respondent.

For a basic overview of how extreme risk laws generally work, see the infographic below.

To learn more about the specific process of obtaining an ERPO in each state please visit The Johns Hopkins Bloomberg American Health Initiative – Extreme Risk Protection Order: A Tool to Save Lives. The Educational Fund to Stop Gun Violence serves as a partner on this innovative project to provide in-depth resources for implementers, advocacy groups, and concerned citizens. 

What Evidence Does A Judge Consider Before Issuing An Extreme Risk Order?

The evidence a judge may consider when issuing an order for firearm removal varies among states. It generally includes, but is not limited to:

  • Recent acts or threats of violence towards self or others.
  • History of threatening or dangerous behavior.
  • Convictions of domestic violence misdemeanors and/or other violent misdemeanors.
  • History of, or current, risky alcohol or controlled substance use.
  • Recent violation of a domestic violence protective order.
  • Unlawful or reckless use, display, or brandishing of a firearm.
  • Recent acquisition of firearms, ammunition, or other deadly weapons.
  • Cruelty to animals.

Mental illness should not be considered by a judge as a risk factor

The factors considered should be based on the evidence of risky behavior, not on a mental illness diagnosis. Mental illness is not a reliable predictor for interpersonal violence. While some mental illnesses, like depression, are associated with suicide and other forms of self-harm, they are not standalone predictors of suicide.

To learn more about how mental illness is not a significant predictor of gun violence, visit our page on mental illness and gun violence.

CASE EXAMPLES: HOW EXTREME RISK LAWS CAN PREVENT VIOLENCE

Suicide 

After receiving an eviction notice, a 57-year-old man from Washington made suicidal statements involving his firearm. Police used Washington’s extreme risk law to temporarily remove the gun and protect this man during the suicidal crisis.26

In Washington, a woman filed an ERPO against her boyfriend after he had previously attempted suicide and now wanted to purchase a firearm. At the hearing, the couple came to court together, holding hands. The man had no objection to the order and was thankful that someone cared enough to ensure he did not have access to a gun during this suicidal crisis.27

Interpersonal Violence

A man in Oregon planned to shoot his boss who had just fired him. His sister stopped him from returning to his former employer. An ERPO was issued.28

A 27-year-old armed security guard in Florida fired his gun into the air and pulled a knife during two arguments with his neighbors. A judge issued a temporary order.29

School Shootings

Two Vermont middle school students were plotting a school shooting, with one student volunteering to use a relative’s guns. A separate student overheard the plan and alerted authorities. An order was issued to remove the guns from the student’s home.30

A Maryland student posted Snapchats of him holding a rifle and threatening a school shooting. Police issued a temporary order and removed a pair of loaded assault rifles and ammunition.31

Mass shootings

A Washington man posted numerous mass shooting threats on social media including stating that he planned on shooting 30 Jews, along with pictures of Nazi artifacts and of his gun collection. An order was granted and 12 firearms were removed.32

In California, a 24-year-old man threatened to kill his family and employees of the family business. He had a history of threatening employees and was previously convicted for a weapons offense. The man’s mother petitioned for a temporary order and 26 firearms were surrendered. Subsequently, a final order was issued.33

Domestic Violence

In California, a 38-year-old man made threats to kill himself, his wife, and their young child. An order was issued after his wife heard him distraught and crying in the bathroom, cocking his gun. 34

In California, a 40-year-old man sent a text message to his fiancé threatening to shoot her. He then visited his fiancé’s ex-boyfriend and threatened to kill him, while holding a knife behind his back. Police used California’s extreme risk law to temporarily remove a handgun and an AR-15 from the man.35

Dementia

In California, an 81-year-old man, known to be in the early stages of dementia, threatened to shoot his wife and a neighbor. His 75-year-old wife escaped by climbing a fence. An order was issued.36

Harassment

A man in Florida confronted Black construction workers with two large knives and yelled racial slurs before slashing their car. An order was issued and police removed two handguns.37

Alcohol and Guns

An intoxicated California man thought he was shooting at raccoons and rats but was shooting into his neighbors’ yards. Terrified neighbors called the police and an order was filed.38

RESEARCH FINDS THAT EXTREME RISK LAWS SAVE LIVES

Peer-reviewed studies have examined the impact of extreme risk laws in Connecticut, Indiana, and California and found evidence that these laws have helped prevent firearm deaths. 

An analysis of Connecticut’s extreme risk law found that from the passage of the law in 1999 to 2013:39

  • 762 firearm removal cases were issued and police found firearms in 99% of cases, removing an average of seven guns per subject.
  • Suicidality or self-injury was a listed concern in ≥61% of cases where such material was available.
  • The majority of cases involved middle-aged or older men.
  • For every 10-20 firearm removals issued, one life was saved.

Source: Swanson JW, et al. (2017).

 

A 2019 study of Indiana’s extreme risk law found that Indiana’s extreme risk law (2006-2013) was similarly effective as Connecticut’s law in preventing suicide.40

  • 395 firearm removal cases were issued and 1,079 firearms were temporarily removed. 
  • In nearly 70% of these cases, suicidal ideation was cited as the reason the order was issued.
  • The majority of cases involved White men. 
  • One suicide was prevented for every 10 firearm removals issued.

A 2018 study published in the Journal of Psychiatric Services estimated the impact of extreme risk laws. This study found:41

  • Indiana’s extreme risk law led to a 7.5% reduction in firearm suicides.
  • Connecticut’s extreme risk law led to a 13.7% reduction in firearm suicides.

A 2019 study examined how extreme risk laws may prevent mass shootings.42

  • Researchers analyzed 159 extreme risk orders issued in California from 2016 to 2018. 
  • In 21 orders, the subject showed clear signs that they intended to commit a mass shooting. 
  • As of August 2019, none of the order subjects went on to commit mass shootings, homicides, or die by suicide after the orders were issued. 
  • Extreme risk laws may be used to help prevent mass shootings. 

Taken as a whole, these studies provide evidence that extreme risk laws are promising tools to help reduce gun violence — particularly firearm suicide.

Which States Have Extreme Risk Laws?

As of July 2020, nineteen states and the District of Columbia have extreme risk laws in effect.

Click on a state to learn more about state laws.

Learn More: Comparison of Extreme Risk Laws by State

IMPLEMENT ERPO

Implement ERPO is a joint project of the Bloomberg American Health Initiative and EFSGV that was designed to be a central resource for those implementing extreme risk laws across the country. Implement ERPO shares information about the different state ERPO laws, training resources, media coverage, research, and advice from law enforcement professionals who are leading ERPO implementation efforts. 

Recommendations

Enact and implement state extreme risk laws to prevent tragedy before it occurs and support robust implementation through local, state, and federal funding.

Far too often, warning signs of tragedy are visible but legal tools to address them are limited. Extreme risk laws are state-level policies that empower law enforcement and other eligible petitioners to intervene and prevent tragedy before it occurs through extreme risk protection orders. We recommend:

  • Evidence-based risk factors: Extreme risk laws should be based on behavioral risk factors for violence, for example, history or threats of violence. Extreme risk laws should properly protect due process rights. A mental illness diagnosis should not be included as a determining factor for an extreme risk protection order.
  • Petitioners: A key principle behind extreme risk protection orders is that they allow for law enforcement and the people closest to the respondent to intervene to help prevent tragedies before they occur. Eligible petitioners for extreme risk protection orders should include: 1) law enforcement officers; 2) family members, household members, and intimate partners; and 3) licensed healthcare providers.
  • Cases involving minors at risk of violence: Extreme risk protection orders, including ex parte orders, should be considered in cases where the respondent is a minor, regardless of legal firearm ownership, if the minor has access to a firearm or would otherwise be eligible to purchase a firearm while the order is in effect.
  • Duration of orders: Temporary (ex parte) orders should be in effect for 2-3 weeks until a hearing at which the respondent has the opportunity to be heard. Final orders should be in effect for 1 year. Final orders should be eligible for renewal based on a petition filed within the final 90 days of the order. If no renewal petition is sought and granted, the order should expire automatically at the end of 1 year.
  • Early termination: Respondents should have the option to petition one time for early termination of the order once it goes into effect, with the burden of proof being on the respondent to demonstrate that they are no longer at elevated risk of violence.
  • NICS: States should report all extreme risk protection orders to the National Instant Criminal Background Check System (NICS), including their expiration dates and any renewals that are granted. The FBI’s NICS section should subsequently enter state-supplied extreme risk protection order data into the NICS systems and utilize these data as firearm prohibitors at the point of firearm purchases. Congress should appropriate funding for NICS to implement the use of extreme risk protection orders as firearm prohibitors at the point of firearm purchases.
  • Data collection and sharing: Extreme risk protection order data should be made available to researchers, and aggregate data should be made available publicly. Data collection is key to understanding how extreme risk protection orders are being used and to ensure they are being used equitably.
  • Implementation and evaluation: States and or local jurisdictions should establish a multidisciplinary working group(s) responsible for ensuring compliance and addressing challenges as they arise; developing and distributing relevant policies, materials, and training for a wide variety of stakeholders; educating the public; improving storage facilities and record keeping; and strategically evaluating extreme risk laws. States should dedicate adequate resources to support these activities. 
  • Funding for implementation: States and localities should allocate funding to ensure proper implementation and effective education of the public about these laws. Congress should provide funding to states and localities to support robust and equitable implementation of extreme risk laws.

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Last updated July 2020